Madras High Court
Manikandan vs The State on 25 August, 2022
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
Crl. O.P. No.5157 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 25/8/2022
CORAM
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
Crl. O.P. No.5157 of 2022
Manikandan ... Petitioner
Vs
1. The State
rep. By The Inspector of Police
All Women Police Station
Thiruvallur
Thiruvallur District.
2. Nandhini ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C. to call
for the records relating to Spl.S.C.No.78 of 2021 on the file of the Mahila Fast
Track Court, Thiruvallur for the offences punishable under Sections 363, 365,
344, 376 (2) (n) of the Indian Penal Code and Section 9 of the Prohibition of
Child Marriage Act, 2006 and Sections 3 (a), 4 (2), 5 (1), 6 (1) of POCSO
(Amendment) Act, 2019 and quash the same.
For Petitioner ... Mr.R.Sasikukmar
For respondents ... Mr.E.Raj Thilak
Additional Public Prosecutor
for R.1.
Mr.K.Thirumavalavan
for R.2
Page No:1/10
https://www.mhc.tn.gov.in/judis
Crl. O.P. No.5157 of 2022
ORDER
This Criminal Original Petition has been filed to quash Spl.S.C.No.78 of 2021, on the file of the Mahila Fast Track Court, Thiruvallur, for the offences punishable under Sections 363, 365, 344, 376 (2) (n) of the Indian Penal Code and Section 9 of the Prohibition of Child Marriage Act, 2006 and Sections 3 (a), 4 (2), 5 (1), 6 (1) of POCSO (Amendment) Act, 2019.
2. The case of the prosecution is that the petitioner and the daughter of the second respondent were in love with each other. On 22/1/2020, the second respondent lodged a complaint under “Girl Missing” and the same was registered in Crime No.23 of 2020 and subsequently, the First Information Report was transferred to the first respondent Police. First respondent Police filed a final report and the same was taken on file in Spl.S.C.No.78 of 2021 on the file of the learned Mahila Fast Track Court, Thiruvallur.
3. Today, when the matter is taken up for hearing, victim girl and defacto complainant filed affidavits, dated 22/2/2022, before this Court to the effect that petitioner and the daughter of the defacto complainant married each other and living peacefully and happily with four months baby. The daughter of the Page No:2/10 https://www.mhc.tn.gov.in/judis Crl. O.P. No.5157 of 2022 second petitioner had attained majority. Hence the defacto complainant prays this Court to quash Spl.Case No.78 of 2021, pending on the file of the Mahila Fast Track Court, Thiruvallur.
4. Today, when the matter is taken up for hearing, petitioner, defacto Complainant and the victim girl were present before this Court, along with their respective counsel. To prove their identity, they have filed the xerox copies of their Aadhar card. Mr.V.S.Thiyagarajan, Sub-Inspector of Police, B 5 Manavala Nagar Police Station, was present before this Court.
5. On enquiry, the victim girl submitted that there is a love affair between herself and the petitioner and now she had attained majority and that she wanted the criminal proceedings to be quashed.
6. The learned Additional Public Prosecutor appearing on behalf of the first respondent submitted that though the parties entered into a compromise while this case is pending, this Court, taking into account the seriousness of the offence has to consider the issue as to whether an offence of this nature can be quashed on the ground of compromise between parties. Page No:3/10 https://www.mhc.tn.gov.in/judis Crl. O.P. No.5157 of 2022
7. In this regard it is relevant to refer the judgment of the learned Single Judge of this Court, in Sabari v. Inspector of Police reported in 2019 (3) MLJ Crl 110, wherein the learned single Judge had discussed in detail about the cases in which persons of the age group of 16 to 18 years are involved in love affairs and how in some cases ultimately end up in a criminal case booked for an offence under the POSCO Act. The relevant portions of the judgment are extracted here under for proper appreciation:
“ 21.When this case was taken up for hearing, this Court became concerned about the growing incidence of offences under the POCSO Act on one side and also the Rigorous Imprisonment envisaged in the Act. Sometimes it happens that such offences are slapped against teenagers, who fall victim of the application of the POCSO Act at an young age without understanding the implication of the severity of the enactment.
26.In addition to the above, this Court is of the view that 'warning' of attraction of POCSO Act must be displayed before screening of any film, which have teenage characters suggesting relationship between boy and girl.
27.Apart from the above, this Court is of the view that as per the 3rd respondent's report, majority of cases are due to Page No:4/10 https://www.mhc.tn.gov.in/judis Crl. O.P. No.5157 of 2022 relationship between adolescent boys and girls. Though under Section 2(d) of the Act, 'Child' is defined as a person below the age of 18 years and in case of any love affair between a girl and a boy, where the girl happened to be 16 or 17 years old, either in the school final or entering the college, the relationship invariably assumes the penal character by subjecting the boy to the rigorous of POCSO Act. Once the age of the girl is established in such relationship as below 18 years, the boy involved in the relationship is sure to be sentenced 7 years or 10 years as minimum imprisonment, as the case may be.
28.When the girl below 18 years is involved in a relationship with the teen age boy or little over the teen age, it is always a question mark as to how such relationship could be defined, though such relationship would be the result of mutual innocence and biological attraction. Such relationship cannot be construed as an unnatural one or alien to between relationship of opposite sexes. But in such cases where the age of the girl is below 18 years, even though she was capable of giving consent for relationship, being mentally matured, unfortunately, the provisions of the POCSO Act get attracted if such relationship transcends beyond platonic limits, attracting strong arm of law sanctioned by the provisions of POCSO Act, catching up with the so called offender of sexual assault, warranting a severe imprisonment of 7/10 years.
Page No:5/10 https://www.mhc.tn.gov.in/judis Crl. O.P. No.5157 of 2022
29.Therefore, on a profound consideration of the ground realities, the definition of 'Child' under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18. Any consensual sex after the age of 16 or bodily contact or allied acts can be excluded from the rigorous provisions of the POCSO Act and such sexual assault, if it is so defined can be tried under more liberal provision, which can be introduced in the Act itself and in order to distinguish the cases of teen age relationship after 16 years, from the cases of sexual assault on children below 16 years. The Act can be amended to the effect that the age of the offender ought not to be more than five years or so than the consensual victim girl of 16 years or more. So that the impressionable age of the victim girl cannot be taken advantage of by a person who is much older and crossed the age of presumable infatuation or innocence”.
8. In the present case, the petitioner and daughter of the second respondent got married. Incidents of this nature keep occurring regularly even now in villages and towns and occasionally in cities. After the parents or family lodge a complaint, the police register FIRs for offences of kidnapping and various offences under the POCSO Act. Several criminal cases booked under Page No:6/10 https://www.mhc.tn.gov.in/judis Crl. O.P. No.5157 of 2022 the POCSO Act fall under this category. As a consequence of such a FIR being registered, invariably the boy gets arrested and thereafter, his youthful life comes to a grinding halt. The provisions of the POCSO Act, as it stands today, will surely make the acts of the boy an offence due to its stringent nature. An adolescent boy caught in a situation like this will surely have no defence if the criminal case is taken to its logical end. Punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the object of the POCSO Act. These incidents should never be perceived from an adult’s point of view and such an understanding will in fact lead to lack of empathy. An adolescent boy who is sent to prison in a case of this nature will be persecuted throughout his life. It is high time that the legislature takes into consideration cases of this nature involving adolescents involved in relationships and swiftly bring in necessary amendments under the Act. The legislature has to keep pace with the changing societal needs and bring about necessary changes in law and more particularly in a stringent law such as the POCSO Act.
9. The main issue that requires the consideration of this Court is as to whether this Court can quash the criminal proceedings involving non- Page No:7/10 https://www.mhc.tn.gov.in/judis Crl. O.P. No.5157 of 2022 compoundable offences pending against the petitioner. The Hon'ble Supreme Court in the case of Parbathbhai Aahir @ Parbathbhai Vs. State of Gujrath, reported in 2017 9 SCC 641 and in case of The State of Madhya Pradesh Vs. Dhruv Gurjar and Another reported in (2019) 2 MLJ Crl 10, has given sufficient guidelines that must be taken into consideration by this Court while exercising its jurisdiction under Section 482 of Cr.P.C, to quash non- compoundable offences. One very important test that has been laid down is that the Court must necessarily examine if the crime in question is purely individual in nature or a crime against the society with overriding public interest. The Hon'ble Supreme Court has held that offences against the society with overriding public interest even if it gets settled between the parties, cannot be quashed by this Court.
10. In the present case, the offences in question are purely individual/personal in nature. It involves the petitioner and the victim girl and their respective families only. It involves the future of two young persons who are still in their early twenties. Quashing the proceedings, will not affect any overriding public interest in this case and it will in fact pave way for the petitioner and the victim girl to settle down in their life and look for better future Page No:8/10 https://www.mhc.tn.gov.in/judis Crl. O.P. No.5157 of 2022 prospects. No useful purpose will be served in continuing with the criminal proceedings and keeping these proceedings pending will only swell the mental agony of the petitioner, victim girl and their parents as well.
11. In view of the above, this Court is inclined to quash the criminal proceedings in Special Case No.78 of 2021 on the file of the Mahila Fast Track Court, Thiruvallur, in exercise of its jurisdiction under Section 482 of the Criminal Procedure Code.
12. Accordingly, this Criminal Original Petition is allowed and the criminal proceedings in Special Case No.78 of 2021 on the file of the Mahila Fast Track Court, Thiruvallur, is quashed. Affidavits, dated 22/2/2022, filed by the parties shall form part of the records.
25/8/2022 Index : Yes / No Internet: Yes Speaking/non speaking order mvs.
Page No:9/10 https://www.mhc.tn.gov.in/judis Crl. O.P. No.5157 of 2022 N. SATHISH KUMAR, J mvs.
To
1. The Mahila Fast Track Court, Thiruvallur
2. The Inspector of Police All Women Police Station Thiruvallur Thiruvallur District.
3. The Public Prosecutor Madras High Court.
Crl. O.P. No.5157 of 2022
25/8/2022 Page No:10/10 https://www.mhc.tn.gov.in/judis